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Gauhati High Court · body

1995 DIGILAW 124 (GAU)

Jyotilata Das v. State of Assam

1995-06-16

A.K.PATNAIK

body1995
In this application under Article 226 of the Constitution of India, the petitioner has prayed for quashing the order dated 24.2.93 of the Principal, Regional Dental College, Guwahati, respondent No. 1 (hereinafter referred to as the Principal) posting her back as Matron of the Girls' Hostel, Regional Dental College, Guwahati, with effect from 1.3.95 and for directing the Principal to allow the petitioner to continue in the post of Library Assistant, Regional Dental College Library with all back wages from March, 1993. 2. The brief facts of the case are that the petitioner was appointed as Matron in the Girls' Hostel, Regional Dental College, Guwahati by order dated 8.4.88 of the Principal. Pursuant to the said order of appointment, the petitioner joined her duties as Matron of the Girls' Hostel, Regional Dental College, Guwahati on 18.4.88 and as such Matron resided in the Matrons Suite in the Girls' Hostel. But thereafter by order dated 28.8.91, the petitioner was released from her duties as Marton Girls' Hostel and posted as Library Assistant in the Regional Dental College Library in the same scale of pay as that of Marton of Girls' Hostel and was asked to vacate the Martons Suite by 1st October, 1991 for administrative convenience by order dated 11.9.91. Pursuant to the said order, the petitioner joined her duties as Library Assistant and vacated the Marton's Suite in the Girls' Hostel. Thereafter by office orders dated 24.1.92, 29.2.92 and 15.7.92 of the Principal, the petitioner was posted temporarily in the Reception Counter of the Regional Dental College as Shri Suren Boro, Receptionist had been allowed to go no leave. She was then asked to do her duties in the Registration and Reception Counter from 8 AM to 2.30 PM by office order dated 25.8.92 of the Principal. Finally, by office order dated 24.2.93 of the Principal the petitioner was posted back as Marton of the Girls' Hostel of the Regional Dental College, Guwahati with effect from 1.3.93. 3. She was then asked to do her duties in the Registration and Reception Counter from 8 AM to 2.30 PM by office order dated 25.8.92 of the Principal. Finally, by office order dated 24.2.93 of the Principal the petitioner was posted back as Marton of the Girls' Hostel of the Regional Dental College, Guwahati with effect from 1.3.93. 3. Aggrieved, the petitioner submitted a representation on 1.3.93 before the Principal for cancellation/stay of the order dated 24.2.93 posting her back as Marton in the Girls' Hostel and in the said representation stated, inter alia, that she was a married woman having two minor children and that as the Matron's Suite is located inside the Girls' Hostel building, her husband and other dependents male member staying with her will not be allowed to stay with her and that her daughter's education may be disrupted due to lack of school bus communication if she had to shift from her own residence to the Matrons Suite. On the said representation of the petitioner while the Principal did not pass any order, the Director of Medical Education, Assam (hereinafter referred to as the Director), respondent No.3, wrote to the Principal by a letter dated 19.5.93 to retain the petitioner in her present assignment as Assistant Librarian (subsequently corrected as Library Assistant by letter dated 21.5.93) until further orders and to pay the arrear salary etc. due to her. Notwithstanding the said letter dated 19.5.93 and subsequent letters dated 7.6.93 and 3.8.93 of the Director, the Principal did not allow the petitioner to continue in her assignment as Library Assistant. It is in these circumstances that the petitioner has moved this Court under Article 226 of the Constitution for relief. 4. The Principal has entered appearance and has filed affidavit-in-opposition contending that the petitioner was appointed as Marton of the Girls' Hostel of the Regional Dental College, Guwahati and the Marton of Girls' Hostel is required to stay in the Marten's Suite of the Girls' Hostel. Initially when the petitioner was appointed as such Matron, her husband was also posted as Superintendent of the Girls' Hostel and the petitioner lived with her husband in the Matron's Suite but thereafter the house of the petitioner which was under construction was ready and she wanted to stay in her newly constructed house while carrying on her duties as Matron. Since the Matron's job was whole time job, and as she was required to stay in the Matron's Suite in the Girls' Hostel, this request of the petitioner was not acceded to but she was attached to the College Library and allowed to draw her salary etc as Matron so that she could stay at her newly constructed house. In place of the petitioner, a lady Matron was appointed to look after the Girls' Hostel but when she expressed her inability to continue, the petitioner had to be posted back as Matron of the Girls' Hostel by the impugned order dated 24.2.93. Since she did not join in the post of Matron pursuant to the order dated 24.2.93, steps had to be taken for making alternative arrangement to appoint someone else in her place. The Principal has also averred in his affidavit-in-opposition that he had intimated the Director in his letters dated 27.7.93 and 23.11.93 that the petitioner could not be accommodated in the post of Library Assistant as no such post is vacant and as the petitioner was not on duty with effect from 1.3.93 no salary was due to her. 5.1 have Mr.DC Mahanta, learned counsel for the petitioner and learned Govt Advocate, Assam. The only point that was raised by Mr.Mahanta was that the Principal cannot flout the orders of the superior authority, namely the Director of Medical Education, Assam, who by letters dated 19.5.93 (Annexure 12), 7.6.93 (Annexure 15) and 3.8.93 (Annexure 18) has repeatedly asked the Principal to allow the petitioner to work as Library Assistant and to pay her arrear salaries etc on the basis of the representation filed by her and this Court ought to direct the Principal to implement the aforesaid orders of the Director and to allow the petitioner to work as Library Assistant and pay her arrear salaries. 6. There is lot offeree in the aforesaid submissions of Mr.Mahanta. It is not disputed that the Regional Dental College, Guwahati is a Government College and all the employees working in the said College including the petitioner are Government servants. 6. There is lot offeree in the aforesaid submissions of Mr.Mahanta. It is not disputed that the Regional Dental College, Guwahati is a Government College and all the employees working in the said College including the petitioner are Government servants. Chapter III of the Fundamental Rules framed by the Government of Assam under section 241(2) (b) of the Government of India Act, 193 5, which are in force and are applicable to all the Government servants in the State of Assam provides for the General Conditions of Service and under FR 15 thereof the whole time of the Government servant is at the disposal of the Government which pays him and under FR 15 thereof the State Government may transfer a Government servant from one post to another. Thus under the General Conditions of Service, the petitioner is liable to be transferred from one post to another by the State Govt. of Assam and her service is at the disposal of the State Government of Assam. Accordingly it is the State Government Assam which has the final say in the matter relating to the posting of the petitioner and the manner in which her service would be utilised and the Principal merely acts as the delegate of the State Govt. in posting the petitioner from one post to another and utilising her service as such Government servant. Where therefore, the State Government of Assam or the Head of Department such as the Director of Medical Education, Assam acting on behalf of the State Government of Assam directs either on the representation of the petitioner or otherwise that the petitioner would be retained as Library Assistant and pay her salary, the Principal cannot in violation of such order passed by the State Government or the Head of Department on behalf of the Government disallow the petitioner from working as such Library Assistant and refuse to pay her salary etc. 7. 7. As would be evident from the letter dated 19.5.93 of the Director (Annexure 12), on the representation of the petitioner, the Director considered the fact that the petitioner had two minor children and took the view that the minor children should be al lowed to stay with their parents for their mental and physical growth and as there was no quarter for Matron in which the two minor children and the husband of the petitioner could stay with the petitioner directed the Principal to retain the petitioner in her present assignment as Library Assistant until further orders and pay her salary etc. due to her. After the said letter dated 19.5.93, the Principal pointed out his practical difficulties in accommodating the petitioner as Library Assistant and paying her salary in his letter dated 27.7.93 to the Director (Annexure A), but after considering the said letter dated 27.7.93 the Director did not revoke his earlier directions in the letter dated 19.5.93 and on the contrary reiterated in his letter dated 3.8.93 (Annexure 18) to allow the petitioner to work as Library Assistant as was done previously and not to drag the matter any further and to clear her salary etc immediately. In my opinion whatever justification the Principal may have had for posting the petitioner back as Marten of the Girls' Hostel by the impugned order dated 24.2.93, after the receipt of the aforesaid letter dated 3.8.95 of the Director, the Principal had no option but to straightway accommodate the petitioner as Library Assistant and to pay her salary forthwith and by not accommodating the petitioner as Library Assistant and by not paying her salary etc. on one pretext or the other, the Principal acted not only contrary to the orders passed by the Head of the Department of the Government but also in an arbitrary manner warranting the intervention of this Court under Article 226 of the Constitution. 8. In the result, this writ petition is allowed and disposed of with the direction that the Principal Regional Dental College, Guwahati (respondent No.l) shall allow the petitioner to continue to work as Library Assistant of the Regional Dental College Library and release her salary etc due to her as per the orders of the Director dated 19.5.93,7.6.93 and 3.8.93(Annexure 12,15and 18) within a month from the date of receipt a certified copy of this order from the petitioner. But there shall be no order as to costs.